Sterling v. Metropolitan Life Insurance — 6 N.Y. St. Rep. 96

Majority

p. 96

Sherwood Sterling, Resp’t, v. The Metropolitan Life Ins. Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

3. Pleadings—Reply—When irregular—Code Civ. Pro., § 516. '

A plaintiff lias no right to reply under Code Civil Procedure, § 516, except when required by order 06 the c urt, and without such order a reply would be irregular, and liable to be stricken out on motion.

S. Same—Order requiring a reply—Code Civil Pro., § 516.

An order requiring a reply can be granted only upon the application of the defendant.

8. Same—Waiver of right to order.

Where the defendants delayed making a motion to compel a reply until the action was referred and noticed for hearing: Del that the failure to raise the objection that a reply was necessary at the argument of the motion for reference, was a waiver of the right.

The appellants are in error in claiming that plaintiff had any right to reply, unless required to do so by order of the court. See Code, § 516. And the order requiring reply could only be granted upon application of defendant. Id.

Had plaintiff replied without being required so to do by order, his reply would be irregular, and be stricken out on motion. Dillon v. R. R. Co., 46 N. Y. Sup., 21.

Defendants were in position to know when they served their answer whether they desired a reply. ' They waited thirty-three days, and until the cause had been referred and noticed for hearing before making any motion to compel reply. That was too late, and fairly exposed them to the objection of seeking delay. Not raising the objection that a reply was needful, when the motion for reference was argued, was a waiver of such right, if there was any. But, irrespective of any question of waiver or loches, the order appealed from was right. _

_ An inspection of the pleadings does not disclose any reason to suppose that a reply would change the position of the parties. The allegations of new matter in the answer are in such general terms, and contain so many allegations of mixed law and fact, that a plaintiff could have no difficulty in denying them, if so minded.

To grant defendant’s motion would cause delay, with no prospect of benefit; and it was properly denied.

.Order appealed from affirmed, with ten dollars costs and disbursements.

plaintiff moved for an order of reference in this action, which was granted; and the defendant moved for a reply to the answer, and the motion was

p. 97

denied; and there is an appeal to the general term by the defendant from both orders.

Under the rules of pleading now prevalent, the answer requires no reply, and the defendant cannot obtain admissions or denials by a reply under the order of the court.

The action is peculiar, and the trial may very well involve the examination of the whole account between the parties, as it is contained on the books of the defendant.

Both orders should be affirmed, with ten dollars costs, besides disbursements.